MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 November 2000                   
	DOCKET NUMBER:   AR2000048306

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. Thomas Lanyi		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That he be awarded a degree in Engineering Psychology from the U. S. Military Academy (USMA) at West Point.

APPLICANT STATES:  That three days before graduation he was separated after being “found on honor.”  He was accused of plagiarism.  He is not proud to admit that there were portions of his paper that plagiarized that of the former student’s work, giving understandable merit to the accusation, but it was not intentional.  His defense relied on the fact that he offered the paper he plagiarized to at least three other people in the same class (showing that he had no intent of advantage) and, more importantly, evidence of character (18 written and four oral statements).  His “star” character witness was to be the First Captain.  The day before his testimony the First Captain withdrew as a witness due to the urgings of his mentor, the Commandant of Cadets.  Being that a jury of his peers knew that the First Captain withdrew from testifying, they could only conclude the worse by his withdrawal.  His right to a fair trial was violated through inappropriate command influence.  He was sent back into the Army as an E-4 with 125 credits but no diploma to show for it.  When trying to transfer to a college to complete his degree, he was told that not all credits would transfer.  He held a strong B average until he was automatically failed for supposedly cheating on the final requirement.  

COUNSEL CONTENDS:  That serious issues of improper command influence are raised in this case.  The First Captain had been announced as a character witness for the applicant.  On the eve of his testimony he declined to appear.  It turned out that his girlfriend’s father, the Commandant of Cadets, had counseled him “not to get involved” in this matter.  The charge on which the applicant was tried was plagiarism.  The evidence was ambiguous.  It was the “impression” of the professor who reported the plagiarism that it was intentional.  On the other hand, there were other witnesses to establish that the material was offered to other cadets, who attributed it in their papers.  The applicant denied any intent to deceive, which is a required element of intentional plagiarism.  Thus, any evidence of character was of critical importance.  Counsel submits that had there been no interference from the Commandant of Cadets the result of the hearing would have been otherwise.  

EVIDENCE OF RECORD:  The applicant's military records are not available.  Information contained herein was obtained from evidence provided by the applicant.

The applicant, who apparently was the Class President, the Second Regimental Commander and who was in the top 5 percent of his class, was accused of plagiarism in writing a paper for his History of the Military Arts class.  He appeared before an Honor Investigation Hearing (HIH).  Apparently, 18 classmates provided character witness statements for his hearing and four individuals, including his roommate who was present in his room when the applicant wrote his paper, testified in person as to his character.  

A second cadet, the First Captain, who had known the applicant well for the previous five years was also to have been a character witness but backed out on the day of the HIH.  The applicant’s roommate provides a statement wherein he states he was witness to a conversation between the applicant and the First Captain.  In this conversation the First Captain told the applicant that he was advised by the Commandant of Cadets to refuse to assist in the applicant’s defense, who felt that such actions would conflict with his role as Brigade Commander.  

The HIH recommended the applicant be separated from the Corps of Cadets.  On 21 May 1999, the applicant, through his legal assistance attorney, provided a rebuttal to the Superintendent, USMA.  He cited unlawful command influence that prevented the First Captain from providing character testimony.  He also cited a hearsay quotation in a memorandum from the Head of the Department of History which the attorney stated was inaccurate (in that the applicant never stated “that he knew he had done wrong (and) that he had taken whole portions of Berry’s paper to submit as his own work”) and highly prejudicial.   The Superintendent approved the applicant’s separation.

The West Point publication Dean’s Documentation for Written Work states that there are two types of plagiarism – intentional and unintentional.  If unintentional, disciplinary measures are taken within the Corps of Cadets and academic administration.  If intentional, “proof” is subjective, based on impression and related through other overt acts, direct or indirect.  To defend a charge of intent, one must present his or her character as unsupportive of the allegation.

Chapter 9 of Regulations for the United States Military Academy provides that a cadet of the First Class who has been found by the Academic Board to have successfully completed the course of instruction, including academic, military, and physical education and training; to have maintained the standards of conduct; and to possess the moral qualities, traits of character and leadership essential for a graduated cadet shall receive a diploma and shall thereupon become a graduate of the USMA with the degree of bachelor of science.  When a cadet is separated and is not awarded a diploma, but the Academic Board determines that the cadet has successfully completed all required courses of studies with a sufficient grade point average, a Certificate of Completion will be issued.

Phone conversation with Mr. Coleman, DSN 688-2050, at the USMA Registrar’s Office, indicates that the applicant did not complete the academic course requirements to be awarded a Certificate of Completion.  He also indicated that Regents College, Albany, NY would probably give him transfer credit for the majority of the credits he earned at the Academy and he would be willing to assist him with applying to that College for such credit.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The West Point publication Dean’s Documentation for Written Work acknowledges that “proof” of intentional plagiarism is subjective, based on impression and related through other overt acts, direct or indirect.  It was a professor’s subjective impression that the applicant committed plagiarism and that it was intentional.  The Board notes that although the applicant’s attorney for his 21 May 1999 rebuttal stated that the applicant never stated “those words,” the attorney does not state exactly just what was said.  The applicant does state in his application to the Board that he was not proud to admit that there were portions of his paper that plagiarized that of the former student’s work.  Although his attorney in connection with his application to the Board states that witnesses established that the plagiarized material was offered to other cadets, that attorney also states that those other cadets attributed it in their papers.  He does not state that the applicant similarly attributed it in his paper.  In the absence of evidence to the contrary, the Board presumes that the judgment of the HIH that the applicant committed plagiarism was well-founded.

3.  To defend against the charge of intentional plagiarism, the applicant attempted to present his character as unsupportive of the allegation.  In this regard he obtained 18 written character witness statements for presentation to the HIH in addition to the oral character witness testimony of four individuals.  Only one of 23 potential witnesses failed to provide the requested testimony.  Even though this witness was the First Captain, the Board concludes that his lone testimony would not have added significantly to that testimony provided by the other 22 individuals.  The Board does not agree with the applicant’s contention that the HIH, a jury of his peers, so respected the high ranking of any one witness over that of the cumulative testimony of 22 other witnesses that the last-minute withdrawal of that one swayed their judgment.  The applicant’s own ranking, as Second Regimental Commander and Class President, was noteworthy yet it failed to sway his peers’ judgment.

4.  The applicant has failed to provide sufficient evidence to convince the Board that the judgment of his peers and the Superintendent of the USMA was unfair or unjust.  While it is unfortunate that the incident so close to his graduation caused him to become academically unqualified to be awarded a diploma or a Certificate of Completion, the applicant might consider applying to Regents College for a more liberal application of his USMA credits towards a degree from that school.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jns___  __cla___  __ti____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000048306	
SUFFIX		
RECON		
DATE BOARDED	20001130	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	104.02	
2.		
3.		
4.		
5.		
6.